The European Court of Justice (ECJ), with decision dated February 13th, 2014 in the case C-446/12 decided a dispute between four journalists and a Swedish company, Retrive Sverige that operates a website hosting lists of links directing to written articles published on other websites. The journalists, as author of the articles, claimed that Retrive Sverige, by linking to their articles, infringed their exclusive right to communicate their works to the public.
The ECJ stated that “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public”.
The ECJ affirmed that an act of communication, to be considered as a communication to the public, must also be directed at a “new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public”.
In ECJ’s view, the users of Retrive Sverige website cannot be considered as a new public, since they access to the copyrighted works through a clickable link. This implies that they are subject to the same restrictions of the users the website where the works was initially published.
Therefore, the users of Retrive Sverige’s website are to be considered as potential recipients of the same initial communication authorised by the copyright holders.
Conversely, ECJ hypothesized a different conclusion in case a clickable link allows users to circumvent restrictions adopted by the landing site.